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Conservatorship Reform in California:Three cost-effective recommendations

Sarah Anders – Joseph Milbury – Ernesto Munoz-Lamartine – Michael ShenGoldman School of Public PolicyUniversity of California, Berkeley

May 2009

The authors conducted this study as part of the program of professional education at theGoldman School of Public Policy, University of California at Berkeley. This paper is submittedin partial fulfillment of the course requirements for the Master of Public Policy degree. Thejudgments and conclusions are solely those of the authors, and are not necessarily endorsed bythe Goldman School of Public Policy, by the University of California, or by any other agency.

Conservatorship Reform

Sarah Anders, Joseph Milbury, Ernesto Munoz-Lamartine, Michael Shen iii

Table of ContentsExecutive Summary........................................................................................................................ vIntroduction..................................................................................................................................... 1

Project goals................................................................................................................................ 1Defining a conservatorship ......................................................................................................... 1Previous legislative action .......................................................................................................... 2Quantitative analysis of data....................................................................................................... 3Qualitative analysis..................................................................................................................... 5

Problems highlighted by analysis ........................................................................................... 5Evaluative criteria used........................................................................................................... 5

Recommendation 1: Web-based Filing System.............................................................................. 6California lacks an adequate information system for oversight of conservatorships ................. 6Sparse national and state-level data ............................................................................................ 6Web-based filing system increases transparency........................................................................ 7How an online system would work............................................................................................. 7Case study: Ramsey County, Minnesota .................................................................................... 8Implementation and costs ........................................................................................................... 8

Recommendation 2: Detailed Defense Report................................................................................ 9Current probate procedure does not sufficiently protect due process rights............................... 9Attorney’s role is essential.......................................................................................................... 9Proceedings must ensure due process rights ............................................................................. 10Court-appointed attorneys do not fulfill their role.................................................................... 11Incentives for court-appointed attorneys .................................................................................. 11

Long term Incentives ............................................................................................................ 11Non- adversarial procedure................................................................................................... 11

Mandate a written report ........................................................................................................... 12Standardized form and minimum content................................................................................. 12Cost-effective............................................................................................................................ 12Potential pitfalls ........................................................................................................................ 13

Recommendation 3: Checklist of Powers ..................................................................................... 13Insufficient emphasis on less-restrictive forms of conservatorship.......................................... 13Moving to a “positive” model................................................................................................... 14Emphasizing less-restrictive alternatives .................................................................................. 15Potential pitfalls and costs ........................................................................................................ 16

The checklist may degrade care for some conservatees ....................................................... 17The checklist creates extra work for courts and judicial officers ......................................... 17The checklist creates extra burden for conservators ............................................................. 17

The checklist may raise expenses for conservatees .................................................................. 18Implementation ......................................................................................................................... 18

Conclusion .................................................................................................................................... 18Summary................................................................................................................................... 18Evaluative criteria ..................................................................................................................... 19

Criteria: Web-based filing system ........................................................................................ 20Criteria: attorney defense report ........................................................................................... 20Criteria: checklist of powers ................................................................................................. 21

Conclusion ................................................................................................................................ 21References..................................................................................................................................... 23Appendix A................................................................................................................................... 25

Cost estimate for checklist of powers recommendation ........................................................... 25


Sarah Anders, Joseph Milbury, Ernesto Munoz-Lamartine, Michael Shen iv

Cost to courts: ........................................................................................................................... 25Cost of completing checklist for temporary and permanent conservatorship: ..................... 25Cost of additional hearings: .................................................................................................. 26Total cost to court: ................................................................................................................ 26

Cost to conservatees:................................................................................................................. 26Completion of checklist on petitions for temporary and permanent conservatorships:........ 26Cost of additional hearings: .................................................................................................. 27Total cost to conservatee:...................................................................................................... 27


Sarah Anders, Joseph Milbury, Ernesto Munoz-Lamartine, Michael Shen v

Executive SummaryThis report assesses the effectiveness of California’s conservatorship system in protecting therights and welfare of the elderly. The 2006 Omnibus Conservatorship and Guardianship ReformAct strengthened the system by creating additional oversight and requirements for conservators,attorneys and judicial officers. However, our analysis suggests the process through whichconservatorships are granted can still be substantively improved.

Our research included a review of sixty conservatorship case files originated in 2007 in SanFrancisco County, and numerous interviews with relevant parties. Our findings highlighted threespecific problems:

California lacks an adequate information system for oversight of conservatorships. The current probate procedure does not sufficiently protect due process rights. California’s process places insufficient emphasis on less-restrictive forms of

conservatorship.

We offer three recommendations that individually address each of these problem areas. Giventhe current budget crisis and limits on court resources, we paid particular attention to cost-effectiveness. In addition, we sought to minimize costs to conservatees, to guarantee due legalprocess and to maximize the probability that conservatorships, when granted, are the least-restrictive means of caring for the conservatees. We also sought to minimize disincentives forresponsible conservators to continue participating in the system.

Recommendations:

1. Establish a web-based filing system for all mandatory forms used in the conservatorshipprocess, including petitions, orders and accountings.

2. Require court-appointed attorneys, prior to receiving compensation, to submit a writtenreport detailing defense of the proposed conservatee.

3. Require petitioners and courts to specify, using a checklist on petitions and order forms,the powers requested and granted for conservatorships.


Sarah Anders, Joseph Milbury, Ernesto Munoz-Lamartine, Michael Shen 1

Introduction

Project goalsCalifornia Advocates for Nursing Home Reform (CANHR) is a non-profit advocacyorganization interested in safeguarding the welfare and rights of the elderly. CANHR isconcerned that flaws within the current conservatorship system may, in some cases, harm thevulnerable population it is designed to protect.

CANHR highlighted three goals for our project: An examination of the effect, if any, of conservatorship reform laws passed in 2006 by

the California Legislature. An empirical data-gathering effort designed to investigate trends within the

conservatorship system. To date, only broad descriptive statistics on conservatorshipshave been published by California’s courts.

If appropriate, policy recommendations for further improvements based on our findings.

In this report, we describe the 2006 reform efforts, our data collection methodology andrecommendations to address three major problems highlighted by our data. Since CANHR isparticularly interested in the process through which conservatorships are granted, we focus ouranalysis on this area. Our policy recommendations are derived in part from an extensive list of85 recommendations published by the Judicial Council of California’s Probate ConservatorshipTask Force. By intention, the Task Force’s recommendations did not prioritize cost. In contrast,we seek to add value by focusing on three recommendations we feel to be especially cost-effective.

Defining a conservatorshipA conservatorship is granted when the court finds that an adult lacks the capacity to take care ofhimself or herself, or his or her affairs.1 For example, a conservatorship may be granted if anelderly person is subject to undue influence, if the person suffers from dementia, or if the personneeds someone to make medical decisions for him or her. An adult deemed incapacitated by thecourt is called the conservatee. The person appointed by the court to manage the personal care orfinances of the conservatee is called the conservator. There are three types of conservators:relatives or friends, professional fiduciaries, and the Public Guardian. Professional fiduciaries areprivate professional conservators. The Public Guardian is a county agency that serves as a publicconservator, typically for people receiving public benefits.2 As of June 2006, there were 45,181active conservatorships in California.3

Conservatorships can be of the person, of the estate, or both. Generally, a conservatorship of theperson grants the conservator the power to establish the conservatee’s place of residence and tomanage the conservatee’s health care, meals, clothing, personal care, housekeeping,transportation and recreation. Conservators may also request additional powers such as exclusive

1 Conservatorships are called guardianships in most other states. A guardianship in California, however, only appliesto minorities.2 Handbook for Conservators, Rep, 2002, Judicial Council of California, 15 Mar. 2009<http://www.courtinfo.ca.gov/selfhelp/seniors/handbook.htm>, p. 1.3 Court Effectiveness in Conservatorship Case Processing: A Report to the Legislature, Rep, Jan. 2008, JudicialCouncil of California, 15 Mar. 2009, p. 5.



medical authority or the authority to administer psychotropic drugs to a conservatee sufferingfrom dementia. A conservatorship of the estate grants the conservator the power to manage theconservatee’s finances, assets, investments and bills.

Conservatorships can either be temporary or permanent. A temporary conservator is appointed ifthe conservatee is in need of immediate help. The appointment usually lasts thirty to sixty days.4

A petition for permanent conservatorship must accompany all petitions for temporaryconservatorship. In the 2005-2006 fiscal year, 5,600 petitions for permanent conservatorshipsand 1,615 petitions for temporary conservatorships were filed in California.5

Conservators must file petitions with the court for both temporary and permanentconservatorships. Once a petition is filed, all relevant parties must be properly notified unless theconservatee faces “immediate and substantial harm during the notice period.”6 Relevant partiesinclude the proposed conservatee and any living relatives. Court investigators, who areemployees of the court, are required to meet with the proposed conservatees, to inform them oftheir rights, and to submit a written report including an opinion on whether a conservatorship isappropriate. In addition, the proposed conservator may file a capacity declaration with thepetition. The declaration is completed by a licensed physician or psychologist, who evaluates theproposed conservatee’s mental functions and capacity to give informed consent to any form ofmedical treatment.7 A hearing is then held to determine whether the conservatorship should begranted. Temporary conservatorship hearings usually take place five days after the petition isfiled, while permanent conservatorship hearings may be held several months later. The proposedconservatee has the right to an attorney, and may attend the hearing if able and willing. Ifcontesting the conservatorship, the proposed conservatee may also request a jury trial.

Previous legislative actionIn November 2005 the Los Angeles Times published a four-part series entitled “Guardians forProfit,” which called attention to significant flaws within California’s conservatorship system.The articles highlighted numerous cases of financial and elder abuse by professional fiduciaries.For example, one conservator used a conservatee’s savings to pay his taxes and invest in afriend’s restaurant, while another secretly sold a conservatee’s house to herself at below-marketrate.8 Conservators also overcharged for services. One conservator charged $170 dollars forgrocery delivery; another charged $1,700 dollars to attend a conservatee’s burial.9 The LosAngeles Times suggested these cases illustrated “how inaction and inattention by the courts haveleft many elderly Californians vulnerable to abuse by the very people entrusted with theircare.”10 The resulting public outcry forced the California Legislature to take action by passingthe Omnibus Conservatorship and Guardianship Reform Act of 2006.

4 Handbook for Conservators, p. 2, 3, 16 and 51.5 Court Effectiveness in Conservatorship Case Processing, p. 5.6 Probate Conservatorship Task Force Recommendations to the Judicial Council, Rep, 9 Dec. 2008, Judicial Councilof California, 1 Apr. 2009 <http://www.courtinfo.ca.gov/jc/tflists/probcons.htm>, p. 15.7 GC-335 Capacity Declaration-Conservatorship, Judicial Council of California.8 Jack Leonard, Robin Fields, and Evelyn Larrubia, "When a Family Matter Turns Into Business," Los AngelesTimes 13 Nov. 2005.9 Leonard et al, 13 Nov. 2005.10 Jack Leonard, Robin Fields, and Evelyn Larrubia, "Justice Sleeps While Seniors Suffer," Los Angeles Times 14Nov. 2005.



The laws made significant improvements to the system for establishing conservatorships, severalof which are highlighted below:

Licensing for professional fiduciaries. The Professional Fiduciaries Act created theProfessional Fiduciaries Bureau within the Department of Consumer Affairs. The Bureauregulates the profession by requiring every practicing professional fiduciary to obtain alicense from the Bureau and agree to a Professional Fiduciaries Code of Ethics.11

Licensing requires passing an exam, 30 hours of initial education courses, and 15 annualhours of continuing education credit for renewal.12

Mandatory court investigator reports for temporary conservatorship hearings. Unlikebefore the 2006 reforms, court investigators are now required to submit a written reportto the court prior to the temporary conservatorship hearing (or within two days of thehearing if before is not feasible).13 The court investigator is required to submit a secondreport for the permanent conservatorship hearing.

New educational requirements. The 2006 Omnibus Act requires that the Judicial Councilof California establish qualifications and educational requirements for court-employedattorneys, examiners and court investigators. In addition, court-appointed attorneys,probate judges and public guardian staff are required to take specific educational classes.Finally, the Act orders the Judicial Council to develop a short educational program to bemade available to proposed conservators and guardians.14

The Judicial Council of California estimated $17.4 million dollars were needed to implement thelegislation’s reforms in fiscal year 2007-2008. This appropriation was eliminated from the finalbudget.15 Consequently, court resources and staff are severely strained, as courts are expected tomeet new requirements without any additional funding from the state.16 The 2006 reformsstrengthened the conservatorship system by creating additional oversight and requirements foractors involved in the system. However, as our analysis will demonstrate, the process throughwhich conservatorships are granted can still be substantively improved. Given the current statebudget crisis, we pay particular attention to cost-effectiveness in making our recommendations.

Quantitative analysis of dataOur dataset consists of sixty randomly selected conservatorship case files originated in SanFrancisco County in 2007. We chose 2007 to gain a clear picture of how the system is operatingin the wake of the 2006 reforms. We selected 2007, not 2008, in order to allow time for thecourts to issue rulings. Statistical software was used to select cases randomly from a pool of alleligible filings.

11 Professional Fiduciaries Bureau, California Department of Consumer Affairs, 9 May 2009<http://www.fiduciary.ca.gov/>.12 Professional Fiduciaries Bureau.13 AB 1363, Jones, Omnibus Conservatorship and Guardianship Reform Act, (2006) (enacted), p. 16.14 AB 1363, p. 1 and 4.15 Probate Conservatorship Task Force Recommendations to the Judicial Council, p. 2 to 3.16 Courts did receive $8.5 million in funding from the Judicial Council of California Trial Improvement Fund,however this was on a one-time basis in fiscal year 2008-2009.



We summarize our main findings below: Petitions for temporary and permanent conservatorships were infrequently denied.

Among cases in which the proposed conservatee did not die prior to the hearing and nocompeting petition was filed, 84 percent of petitions for permanent conservatorship (37of 44) were granted. Similarly, 88 percent of petitions for temporary conservatorship (42of 48) were granted.

Petitions were usually accompanied by requests for temporary conservatorships.Eighty percent (48 of 60) of petitions for permanent conservatorships were accompaniedby petitions for temporary conservatorship. According to one attorney we interviewed,the high rate of filings for temporary conservatorship may be due to the long waiting timebetween filing a petition for permanent conservatorship and the hearing. Our data showedthat, on average, petitioners wait 92 days for a permanent conservatorship hearing to takeplace. This delay is due at least in part to the workload of court investigators. Accordingto a probate official, investigators in San Francisco County typically have 10 to 20 activeinvestigations on their desks at any given time. Investigations require from six to morethan 40 hours to complete.

Proposed conservatees rarely attended temporary or permanent conservatorshiphearings. Only 21 percent (9 of 42) of proposed conservatees attended their temporaryconservatorship hearings. This figure rises only modestly for permanent conservatorshiphearings, with 27 percent (11 of 41) of proposed conservatees attending. Many proposedconservatees do not attend because of medical inability. However, it is noteworthy thatfew proposed conservatees have the opportunity to personally express their wishes incourt.

Proposed conservatees are more likely to have attorney representation at permanentconservatorship hearings than at temporary conservatorship hearings.An attorney for the proposed conservatee was present at 46 percent (19 of 41) ofpermanent conservatorship hearings, a surprisingly low figure. Attorney representationduring temporary conservatorship hearings, however, is even lower, at 31 percent (13 of42). The 15-percentage point difference is likely due to the quick 5-day turnaroundbetween filing a petition for temporary conservatorship and the hearing. Many proposedconservatees may have difficulty securing an attorney in that time.

Proposed conservatees were more likely to be permanently conserved when representedby an attorney. Seventy-three percent (11 of 15) of petitions for permanentconservatorship were granted when the proposed conservatee did not have an attorney.Surprisingly, the percentage climbed to 90 percent (26 of 29) when the proposedconservatee had an attorney.17

Zero conservatorship cases went to jury trial.

17 One explanation for this statistic might be that those with an attorney may actually need a conservatorship morethan those without. For example, someone in a coma may need the protection of a conservatorship; however, a courtmight be wary to grant it without the proposed conservatee having representation.



Of the proposed conservatees that had attorney representation at some point, 53 percent(21 of 40) were represented by court-appointed attorneys.

Powers granted to conservators were rarely limited. Among the 37 cases in whichpermanent conservatorship was granted, only 4 included limitations on the powersgranted to the conservator. These limitations were minor.

Qualitative analysisTo complement our data analysis, we interviewed numerous interested parties within theconservatorship system. These interviews helped us gauge how feasible our recommendationswould be to implement. Organizations interviewed included: California Advocates for NursingHome Reform; Los Angeles Times; Office of Governmental Affairs, Administrative Office ofthe Courts; San Francisco Probate Department; Ramsey County (MN) Probate Department; theMinnesota Association for Guardianship and Conservatorship; a professional fiduciary; and anattorney who represents both conservators and conservatees. We also reviewed literaturepertaining to conservatorship issues both in California and nationwide. Finally, to betterunderstand probate proceedings, we attended conservatorship hearings in San Francisco.

Problems highlighted by analysis

Our analysis highlighted three specific problems with the current conservatorship system:

1. California lacks an adequate information system for oversight of conservatorships.2. The current probate procedure does not sufficiently protect due process rights.3. California’s process places insufficient emphasis on less-restrictive forms of

conservatorship.

We offer the following recommendations to make substantive improvements in each of theseproblem areas at reasonable cost:

1. Establish a web-based filing system for all mandatory forms used in the conservatorshipprocess, including petitions, orders and accountings.

2. Require court-appointed attorneys, prior to receiving compensation, to submit a writtenreport detailing the defense of the proposed conservatee.

3. Require petitioners and courts to specify, using a checklist on petition and order forms,the powers requested and granted for conservatorships.

Evaluative criteria used

We used the following set of criteria to decide on our final set of three recommendations toimprove California’s conservatorship system:

1. Maximize cost-effectiveness.2. Minimize cost to conservatees.3. Maximize probability that each conservatorship is the least-restrictive possible means of

caring for the conservatee.4. Maximize due legal process for proposed conservatees.5. Minimize disincentives for responsible conservators.



Recommendation 1: Web-based Filing SystemEstablish a web-based filing system for all mandatory forms used in the conservatorship process,including petitions, orders and accountings.

California lacks an adequate information system for oversight ofconservatorshipsCalifornia does not currently aggregate extensive data on conservatorship cases. To collect dataon the state’s 45,000-plus active conservatorships, one would need to visit every countycourthouse to review individual case files. Such data collection is impractical, onerous and timeconsuming. Furthermore, as we discovered through our own data-gathering effort, deciphering acase file is a highly subjective process. Forms are sometimes incorrectly completed, andoccasionally missing from the file altogether. Such patchwork data is an obvious impediment toongoing oversight and reform efforts.

As a solution, we propose a web-based filing system for all mandatory forms used in theconservatorship process: petitions for temporary and permanent conservatorships, the ordersgranting conservatorships, and the annual accounting forms. Web-based filing is a cost-effectivemeans of gathering data and increasing oversight by both the courts and the public. Becausechecks can be built into the process to ensure consistent data entry, electronic forms will alsosave time for court staff. Finally, red-flag software can be used to detect possible instances ofabuse.

Sparse national and state-level dataIn a 2004 report, the United States Government Accountability Office (GAO) highlighted thelack of data on conservatorships around the country. Less than one-third of courts surveyedtracked the number of active conservatorships for incapacitated adults. GAO concluded that lackof data hindered oversight and reform efforts. According to the report, there was no way to tell ifthe incidents of abuse were “isolated examples of abuse in an otherwise well-functioning processor accurately portray the norm...” GAO also states that “sufficient data are not available todetermine the incidence of abuse of incapacitated people by [conservators]. . . nor the extent towhich [conservators]. . . are protecting incapacitated people from abuse.” 18

The lack of national aggregate data is mirrored at the state level in California. As mentioned, wefound data collection to be a difficult and time-consuming process. We are not alone; despite itscentrality to the court system, the Judicial Council of California itself has acknowledgeddifficulty in gathering information on conservatorships statewide. A 2007 report states“[b]ecause currently no statewide case management system is in place, and local systems capturedata elements differently, basic information on conservatorship cases is not readily available formore than a handful of trial courts.”19 The Judicial Council further concludes: “Baseline andongoing data collection will facilitate system wide oversight. It is essential to collect baseline

18Guardianships: Collaboration Needed to Protect Incapacitated Elderly People. Washington DC: United StatesGovernment Accountability Office, 2004.19 Court Effectiveness in Conservatorship Case Processing: A Report to the Legislature. San Francisco, CA: JudicialCouncil of California, 2007.



and ongoing data for this case type. Ongoing evaluation of the conservatorship system mustbegin with increasing the availability of descriptive baseline data.”20

Web-based filing system increases transparencyAmong states, California is not alone in failing to collect data on its active conservatorships.California has an opportunity to lead by being among the first in the nation to convert to anonline filing system.

The Judicial Council identified as critical statistics for oversight the total number ofconservatorships per jurisdiction, the annual number of petitions for conservatorships, and thepercentage of petitions granted. An online filing system could easily aggregate such data,eliminating the need for expensive surveys and case-by-case file reviews. The system would alsocollect key metrics such as the percentage of conservatees represented by attorneys, the averagedelay between petition filings and hearing dates, and the overall percentage of cases handled byPublic Guardians. Such data would permit the tracking of county-specific and statewide trends,facilitating policy responses to changing circumstances. For example, a steep increase in thepercentage of cases handled by Public Guardians might indicate the departure of professionalfiduciaries from the system. Such a departure might require additional funding for PublicGuardians or heightened incentives for professional fiduciaries.

Both internally and externally, web-based filing will increase transparency in the conservatorshipsystem. Internally, state officials will be able to query, locate and review data instantaneously.The Judicial Council or other state agencies would be able to study trends across the state or inspecific counties. Externally, a database of non-confidential information can be made availableto the public. Documents, attachments and court investigator reports currently classified asconfidential would remain offline. Public skepticism about the conservatorship process maydecrease if the system is made more transparent.

Many counties already scan forms as images which can be viewed on courthouse computers.Because statistics cannot be aggregated from these files, they offer little benefit in terms of datacollection. The Judicial Council has instituted a Portable Document Format (PDF) file that canbe filled out online and printed for petitions for conservatorship. While these forms are notentered into a database, they do lay the groundwork for online data collection, and should easethe transition process.

How an online system would workWe recommend that all mandatory forms be completed online and that courts eliminate paperforms. Mandatory documents include: petitions for conservatorships, orders grantingconservatorships, and the accounting forms required to be completed annually by conservators.Petitioners without internet access should be permitted to use courthouse terminals. Oncesubmitted online, forms will be immediately available to court staff. Because the content of theforms will not change, transitioning to an online system should not require significant additionaltraining for court staff.

20Court Effectiveness in Conservatorship Case Processing: A Report to the Legislature. San Francisco, CA: JudicialCouncil of California, 2007.



A number of checks will be built into the web-based system. If a user fills in a forminconsistently or incorrectly, submission will be denied until the form is appropriatelycompleted. Ensuring that all forms are correct and complete will result in fewer court hearingsand fewer continuances due to improperly filled-out paperwork. It will also save court resources,since staff will no longer need to hand-check forms and scan them into the system for publicviewing. If court staff wish to review a particular file, they will be able to print the informationfrom the database in a format similar to the current, manually-completed forms. Data thenbecomes universally available in a consistent format.

Once data is collected, “red flag” software will be developed to check for potential cases ofabuse. This software will be especially useful in auditing the financial accountings submitted byconservators. Automated checks of the financial information can help guard against abuse of aconservatee’s finances. The web-based system can be designed to accept accountings created inpopular financial software such as Microsoft Money or Intuit QuickBooks.

Case study: Ramsey County, MinnesotaRamsey County, Minnesota, began requiring conservators to file all annual accounting formsonline in September 2008. We spoke with the county’s probate court manager aboutimplementation of the web-based system. Ramsey County spent a year creating the system withthe help of a private contractor, at a project cost of $40,000 dollars. Maintenance and upkeepcost $4,700 dollars annually. Ramsey County’s system is a pilot project for the state. In the nearfuture, the system will be expanded to cover the rest of Minnesota.

Implementation of the online accounting process was straightforward. Ramsey County chose toeliminate all paper accountings and to make their courthouse computers available for filings.This change created no extra work for either conservators or the court. If court staff wished toview a report, they could use the database to print a form identical to the accounting form thatwould otherwise have been completed manually. The official start date of the new requirement,September 2008, is effectively “staggered” for conservators; for example, those who had filedtheir previous accounting in August 2008 will not be required to file an online accounting untilAugust 2009. This staggered start minimized the technical challenges associated with a web-based system. Three trainings were offered over the course of many months.

Because of built-in software for checking errors, the new system eliminated the need to correctsmall errors on forms, allowing staff to focus on more substantive work. Most conservators weresurprised that online filings had not been made mandatory sooner. Few conservators expresseddissatisfaction with the new system.21

Implementation and costsAs in Minnesota, we recommend establishing a pilot project in one county in California. Thereshould be a staggered start that allows most conservators time to adjust to the new filingrequirements. This will minimize technical issues.

The cost of Ramsey County’s system was $40,000 dollars. This system handles onlyaccountings, just one component of our recommendation. We estimate that $150,000 dollars,slightly more than triple the cost, will be needed to develop a one-county online system for all

21 Case study all from: Maus, Dean. Ramsey County Probate Court Referee. Phone interview. 16 Apr 2009.



conservatorship-related filings, including petitions, orders and accountings. Assuming a fixedannual maintenance cost of $4,700 dollars, managing the system for 10 years would cost anadditional $47,000 dollars. Our total estimate is $197,000 for establishing and running a systemfor 10 years. Since auditing is performed as-needed or at-will, we do not include this cost in ourestimate. For this reason, our figure may be considered a lower bound. However, since an onlinesystem is scalable, the cost of expansion to other counties should not be as large.

Recommendation 2: Detailed Defense ReportRequire court-appointed attorneys, prior to receiving compensation, to submit a written reportdetailing the defense of the proposed conservatee.

Current probate procedure does not sufficiently protect due process rightsCalifornia’s Probate Code specifies that the system should “Protect the rights of persons who areplaced under conservatorship.”22 The Probate Code ensures this by setting up a series of controlssuch as mandatory notices, court supervision over conservators and periodic reviews of theconservatorship. The protection of a proposed conservatee’s rights depends heavily on the courtand on the performance of the proposed conservatee’s attorney. However, our research suggeststhese attorneys may not be fulfilling their function.

To better guarantee due process rights for conservatees, we focus on the role of court-appointedattorneys and recommend that they submit a standardized report detailing some key aspects oftheir defense of the proposed conservatee. According to our data, they are essential actors in theproceedings: 53 percent of conservatee lawyers were court-appointed. This report should be arequirement for compensation and should be filed when attorneys submit their fees for courtapproval. We believe that this is a cost-effective alternative that would reduce due processviolations, by setting up short-term incentives that do not exist today.

Attorney’s role is essentialThe probate court “may appoint private legal counsel” if it determines that the appointmentwould be helpful to the resolution of the case or if it is necessary for the protection of theproposed conservatee’s interests.23 Also, the court can appoint legal counsel upon request by theproposed conservatee even if his or her capacity is challenged.

The Rules of Professional Conduct published by the State Bar of California outline the legalcounsel’s role during the conservatorship process. An attorney should communicate with theconservatee, keeping him or her reasonably informed about the procedure and its meaning,transmit the proposed conservatee’s desires to the court, and, most importantly, abstain fromadvancing any interest adverse to his or her client.24 These duties entail the organization of theclient’s legal defense, which includes reading the file, presenting objections when appropriate

22 Prob. § 1800 (a)23 Prob. §§ 1470 (a), 1471.24 Rules of Professional Conduct, State Bar of California



and presenting arguments to the court.25 In general, the attorney must work to ensure that thecourt only grants a conservatorship when it is the least restrictive means of caring for theconservatee and when the burden of proof has been met.26 In this respect, the California probatecode establishes that “the standard of proof for the appointment of a conservator pursuant to thissection shall be clear and convincing evidence.”27 If these standards are upheld by attorneysduring the proceedings, they will be advancing their client’s interest and ensuring due process oflaw.

Proceedings must ensure due process rightsProcedural protections are essential to conservatorships28, as conservatorship is one of the mostsevere restrictions allowed on one’s liberty or property.29 Due process of law as a legal andjurisprudential concept has its origins in the Magna Carta. The framers of the United StatesConstitution considered it a fundamental right of the people and included it in the Bill ofRights.30 Specifically, the U.S. Constitution establishes due process rights in its Fifth andFourteenth Amendments. The California state constitution does so in Article 1, Section 7 (a):“No person shall be deprived of life, liberty, or property, without due process of law.”

Since its inclusion in the Bill of Rights, the concept of due process of law has been developed bySupreme Court decisions to include two kinds of rights: procedural due process (protectionsembedded in a judicial process for taking away life, liberty or property) and substantive dueprocess (reasons for taking away life, liberty or property).31 Our recommendation is concernedwith procedural due process, since we find there is a compelling societal interest in protectingproposed conservatees who might be at risk. The content of procedural due process has beentraditionally understood to be three-fold, consisting of the right to a fair and public trialconducted in a competent manner, the right to be present at the trial, and the right to be heard inone’s own defense.32 When these rights are observed in a procedure, we can conclude that theproposed conservatee has had meaningful access to justice.33

In the probate procedure, when there is consideration of whether a person lacks the capacity torun his or her own affairs, the role of a legal advisor is essential to prevent errors due to

25 The rule 3-110 of professional Conduct for California establish that is an infraction to the duties of an attorney to“Fail to act competently” and that competence shall mean to apply: 1) diligence, 2) learning and skill and 3) mental,emotional and physical ability.26 Probate Code 1800.327 Prob. § 1801 (e)28

Starr, June; Friedman, Lawrence “Statutory Reform and the Incompetent Elderly; 17 PoLAR 65 (1994) Politicaland Legal Anthropology Review. The authors conclude that the California solution for possible abuses, is toincrease procedural safeguards.29 Bernstein, Paul. "Eroding Roulet: how the courts ignore a landmark in California civil commitment hearings."University of San Francisco Law Review 33.1 (Fall 1998): 59-83. The article analyzes a 1979 landmark decision bythe California Supreme Court called the “Conservatorship of Roulet.” The Court recognized that commitment to amental institution involves as much loss of liberty as imprisonment.30 Rankove, Jack “Original Meanings: Politics and ideas in the making of the Constitution” Chapter X, Rights. 199631 Chemerinsky, Erwin “Constitutional law, Principles and Policies” Third Ed. Aspen Pub. 2006, p.545.32 Mullhane v. Central Hanover bank & Trust Co. 339 U.S. 306 (1950), Goldberg v. Kelly, 397 U.S. 254 (1970),Richards v. Jefferson County, 517 U.S. 793 (1996). All cited in Chemerinsky, Erwin , op.cit. p. 58033

York, Tricia M. Conservatorship Proceedings and Due Process: Protecting the Elderly in Tennessee;U. Mem. L. Rev. 538 (2005-2006) This article analyzes Legislation in Tennessee and propose changes in order toprotect due process:



ignorance or confusion. This decreases the likelihood of due process violations. Even if theoverwhelming majority of granted conservatorships are justified on the grounds of health,destitution or practical needs, the legal system must especially protect the rights of that smallshare of cases in which there may be reason to adopt a less-restrictive alternative. To achieve thisgoal it is essential that proposed conservatees’ attorneys advance, without compromise, theconservatees’ interests. However, our data tells a different story regarding the role ofconservatees’ attorneys.

Court-appointed attorneys do not fulfill their roleOur data collection suggests that attorneys are not fulfilling their roles in probate proceedings.First, we found the likelihood that a permanent conservatorship was granted increased when theproposed conservatee had an attorney. Without an attorney the likelihood was 73 percent; withan attorney it was 90 percent. In theory, the attorney should be fighting for a less-restrictivealternative to conservatorship whenever possible. Therefore, having an attorney should decrease,not increase, the likelihood of a conservatorship being granted.

Second, we found that the number of cases that went to trial is zero. In probate procedure, trialsare the exception rather than the rule. However, even accounting for this factor and others, suchas the costs of trials and the negative consequences of postponing key decisions, the probabilityof a case going to trial cannot be zero. These statistics provide evidence that attorneys do notproperly represent proposed conservatees.

Incentives for court-appointed attorneys

Long term Incentives

Attorneys do not have strong procedural incentives to oppose the granting of conservatorships,especially if the court investigator’s report concludes that the conservatorship is warranted.Attorneys have only short-term financial incentives to extend the procedures and request a trial,which would lead to increased fees. On the other hand, they face few long-term incentives topush for a trial and to expend the resources of the courts, since courts may be more willing toappoint attorneys whom they see as collaborators, or “team players.” Courts may be less likely toappoint an attorney who fights too much. This model is in line with our statistics, which showthat proposed conservatees with attorneys are more likely to be conserved.

Non- adversarial procedure

There is another explanation, related to the nature of probate procedure, that addresses anongoing controversy among practitioners about the role of the attorney.34 Some of thepractitioners we interviewed stated that a conservatorship is an intervention process that isintended to benefit the conservatee. The paternalistic nature of this process means that attorneysrepresenting a proposed conservatee should be collaborative rather than adversarial. Thecollaborative effort involves all actors: judges, court investigators and attorneys for both theconservator and the proposed conservatee. In contrast, the adversarial process is characterized byopposing views that clash before the court, with the outcome determined by the weight of the

34 Dore, Margaret K. "Ten reasons people get railroaded into guardianship." American Journal of Family Law 21.4(Wntr 2008): 148(5). ”There is a misconception that guardianship is always a good thing, proposed wards agree to itnot understanding that their rights will be restricted Guardianship is a severe loss of liberty”



evidence provided. Our interviews and our statistics suggest that the model for conservatorshipprobate procedure in California is more collaborative than adversarial35.

Even if the proper nature of the probate procedure is non-adversarial, attorneys should notsimply collaborate with the court. First and foremost, attorneys are advocates with the duty toprotect the proposed conservatee’s interests and to follow his or her instructions. Again, even ifthe overwhelming majority of conservatorships are warranted, the legal system must protect dueprocess rights in cases where a less-restrictive alternative is available. A well-functioningprocedure, in which attorneys articulate a meaningful defense “is necessary to measure thedegree of threatened deprivation and then balance it against the state's interest in an expeditiousproceeding.”36 Our data suggest this issue is not properly addressed by the status quo.

Mandate a written reportWe propose that court-appointed attorneys file a written report detailing the desires of theproposed conservatee and the legal arguments made on his or her behalf, before receivingcompensation for services. Court-appointed attorneys are already required to submit a letter tothe court reporting the number of hours billed to his or her client for compensation. Thismandatory written report should be submitted alongside billing hours. Implementing thisrecommendation is quite feasible as, according to the California Probate Code, it can beaccomplished without additional legislation by the authority of the Judicial Council.37 Thisrecommendation would provide economic incentives as well as behavioral incentives. By signinga form that describes their efforts in their clients’ defense, we expect to encourage attorneys toadopt an active role opposing the conservatorship when their clients want to do so, and to collectand present evidence to advance their case before the court.

Standardized form and minimum contentIn order to minimize the amount of time devoted to the report and to reduce costs for theproposed conservatees, the report should be a standard form.

The report must at least answer the following questions: Did the conservatee oppose the conservatorship? If the conservatee was opposed, what legal steps were taken? Was the conservatee informed of his or her right to a jury trial? If the conservatee opposed conservatorship and a jury trial was not requested, why?

Cost-effectiveWe calculate the cost of this recommendation using an estimate of attorney’s fees at $250 dollarsper hour. We estimate that the report can be completed in 45 to 60 minutes. Thus, we estimate

35 This fits our findings in the sense that the addition of another collaborator to the system actually increases the rateof conservatorships granted.36

Jones, Vreeland O. Probate Code Conservatorships: A Legislative Grant of New Procedural Protections[comments] 8 Pac. L. J. 73 (1977)37 CPC 1001. (a) The Judicial Council may provide by rule for the practice and procedure under this code. Unlessdisapproved by the Judicial Council, a court may provide by local rule for the practice and under this code. JudicialCouncil and local court rules shall be consistent with the applicable statutes. (b) The Judicial Council may prescribethe form of the applications, notices, orders and other documents required by this code. Any form prescribed by theJudicial Council is deemed to comply with this code.



the cost of this recommendation to each proposed conservatee is between $188 and $250 dollars.We do not anticipate the mandatory written report will create any additional costs to the courts.

Potential pitfallsThere is always a possibility that attorneys will deviate from our cost estimates by taking moretime to complete the form and charging more than estimated. Our recommendation addresses thisconcern by proposing a standardized form intended to minimize time invested by attorneys.Also, common practice would determine a “standard time” devoted to filling out the form,creating a disincentive to charge more than the required time.

Another potential concern is that our recommendation is not directed at all attorneys, only thoseappointed by the court. However, it makes sense to focus attention on court-appointed attorneysbecause, according to our data, court-appointed attorneys constitute 53 percent of the overalllegal counsel for proposed conservatees. Also, attorneys directly contracted by a proposedconservatee face a different set of incentives, and therefore, have fewer reasons to deviate fromrepresenting the real interest of conservatees.

Finally, we considered whether the mandatory report could violate client-attorney privilege. Webelieve this is not the case, since the form would contain broad legal reasoning rather thanconfidential information.38

Recommendation 3: Checklist of PowersRequire petitioners and courts to specify, using a checklist on petition and order forms, thepowers requested and granted for conservatorships.

Insufficient emphasis on less-restrictive forms of conservatorshipCalifornia’s probate code permits courts to limit the powers of conservators. Forconservatorships of the person, “the court, in its discretion, may limit the powers and duties thatthe conservator would otherwise have.”39 For conservatorships of estate, the court may “insert inthe order of appointment conditions not otherwise obligatory providing for the care and custodyof the property of the ward or conservatee.”40

However, our research suggests such limitations are the exception rather than the rule. Of 40petitions resulting in permanent conservatorships, we found one case in which the publicguardian was asked to make special arrangements for the conservatee’s rehabilitation, two casesin which monthly allowances were granted to the conservatee, and one case in which theconservator was directed to consult with the conservatee’s relatives regarding medical care. Inthe remaining 36 cases (90 percent), the courts did not limit the conservator’s powers. Lackingaccess to confidential filings, we cannot judge whether the condition of the conservatee

38 According to the California Rules of Professional Conduct, “Client-lawyer confidentiality applies to informationrelating to the representation, whatever its source, and encompasses matters communicated in confidence by theclient.”39 Prob. § 2351 (b)40 Prob. § 2402



warranted the granting of full powers to the conservator in these cases. At minimum, our datasuggests that courts limit powers infrequently and in minor ways.

The Probate Code states that a conservatorship should only be established when it is “the leastrestrictive alternative needed for the protection of the conservatee.”41 This standard enjoys broadconsensus because of the severe restrictions conservatorship places on a conservatee’s civilliberties. Conservatorships are intended as a last resort. By extension, we reason that even whenconservatorships are deemed appropriate, they should be made as non-restrictive as possible. Inother words, powers should be withheld from the conservator unless it can be proved they areneeded to care for the conservatee. To encourage this practice, we recommend that a checklist ofpowers be added to California’s conservatorships forms.

Moving to a “positive” modelCurrently, some notable powers, such as the right to marry and to consent to medical treatment,are retained by the conservatee unless the court explicitly grants them to the conservator. Ingeneral, however, California operates under a “negative” model, under which conservatorpowers are plenary and must be specifically withheld by the court. To encourage increasedtailoring of powers, we recommend that California shift to a “positive” model under whichconservator powers must be specifically granted. This could be accomplished by redesigning thepetition and order forms for both temporary and permanent conservatorships to include achecklist of powers. Petitioners would be required to specify and briefly justify in writing whyeach power is needed; courts would approve or deny each power based on the evidence provided.

Several other states, such as Florida, Rhode Island and Minnesota, emphasize the use of limitedconservatorships with specified powers.42 For example, in Minnesota, petitioners forconservatorship of the person (termed “guardianship”) must justify in writing why a limitedconservatorship is not appropriate. If applying for limited powers, the petitioner chooses from alist including powers to change the conservatee’s residence, to care for the conservatee’spossessions, and to give consent for medical or professional care. A space is also left for thepetitioner to request powers not included on the checklist as well as “all other powers, duties andresponsibilities conferred on the [conservator] under applicable law.” The judicial officer thenauthorizes or denies each power through an identical checklist on the order establishingconservatorship. Powers are similarly delineated for conservators of the estate. Copies ofMinnesota’s forms are provided in Appendix A.

Further research, legal consultation and interviews with practitioners are needed to generate afinal checklist of powers appropriate for California. We offer the following preliminaryrecommendations based on the powers broadly available to conservators under current Californialaw. Each bullet point represents a proposed box on the checklist.

Powers and Duties Pertaining to Conservatorships of the Person: Choice of conservatee’s residence Provision of non-medical services such as home maintenance, hygiene and meals Control over conservatee’s personal effects and clothing

41 Prob. § 1800.3 (b)42 Limited Guardianship of the Person (As of statutory revisions July 2008).AARP Public Policy Institute. <https://www.abanet.org/aging/legislativeupdates/pdfs/chart_limited.pdf>



Supervision authority, including management of visits and recreation Medical care, including the choice of health care providers Dementia treatment Withholding of allowance43

Other powers the court deems necessary for care of the conservatee

Powers and Duties Pertaining to Conservatorships of the Estate: Control over the conservatee’s financial and bank accounts Management of the conservatee’s bills, debts and outstanding claims Investment decisions on behalf of the conservatee Approval of contracts, including insurance policies Authority to apply for government benefits on behalf of the conservatee and to collect non-

wage income Authority to represent the conservatee in court matters not related to the conservatorship Power to sell assets which are not real estate Other powers listed under Probate Code Section 2590, including the power to sell real

estate, to borrow money and to operate the conservatee’s businesses. Other powers the court deems necessary for conservation of the estate.

The checklist of powers could be reconciled with existing limitations and protections underCalifornia’s probate code. For example, California has additional rules governing medicaldecision-making and determination of residence for conservatees. It should be noted thatMinnesota also provides for further limitations in its probate code, in addition to using achecklist. For example, even if granted to a conservator, the power to make medical decisions forthe conservatee does not extend to experimental treatments or to drastic measures likeelectroshock therapy. A checklist thus offers two levels of protection: not only must each powerbe specifically granted, but each may be further limited through language contained in theprobate code. Such limitations will help ensure that each conservatorship is the least restrictivealternative possible.

Emphasizing less-restrictive alternativesConservatorships should not be established when less-restrictive alternatives are available.However, as one elder abuse activist has written, “the problem is, there just aren’t manyalternatives, and those that do exist are either flawed or aren’t being used.”44 Some alternatives,such as durable powers of attorney and medical wills, require foresight on the part of theconservatee. Others, such as Probate Code section 3200, which permits the court to appoint amedical decision-maker for an incapacitated person, are narrowly defined and may not suffice tocare for conservatees with multiple ongoing needs.

By encouraging limitations on conservator powers, the proposed checklist creates a menu of lessrestrictive alternatives for petitioners and courts to consider. For example, a judge may decide aconservator needs the power to provide home upkeep services for a conservatee, but does not

43 We recommend the forms reflect a prior presumption that a monthly allowance should be granted unless theconservatee explicitly refuses it or the court finds that an allowance is impractical.44 Nerenberg, Lisa. “Feel-Good Laws or Real Reform?” Prevent Elder Abuse. 12 Feb. 2007.<http://preventelderabuse.blogspot.com/search/label/Conservatorship>



require other supervision authority. In such cases, the granting of unnecessary powers infringeson a conservatee’s civil liberties. This infringement is of special concern when the conservatorfails to perform his or her duties responsibly.

Shifting to a positive model may have particular value in regard to temporary conservatorships.A temporary conservatorship is meant to protect the conservatee pending hearing on a permanentconservatorship. In the meantime, the temporary conservator may require only limited authority,such as the power to move the conservatee into or out of a hospital, or to safeguard assets fromtheft. In such cases, a checklist would rightly encourage courts to sharply limit conservatorpowers. Moreover, it would counteract a possible tendency for courts to simply extend thepowers of the temporary conservator when establishing permanent conservatorship, rather thanreconsidering whether such powers are still needed.

A checklist may also improve soundness and consistency of judgment. In a study by researchersat Rice University45, participants were asked to read fictional crime cases and decide whether theevidence suggested guilt or innocence. The study found greater consistency of verdicts amongparticipants when the evidence was evaluated in blocks rather than holistically, suggesting thatgranularity improved judgment. Checklists have also been shown to improve performancestandards in other institutional settings, notably hospitals. In Michigan, a project thatimplemented simple sterilization checklists in intensive care units is credited by some withhaving saved 175 million dollars and fifteen hundred lives over the course of eighteen months.46

Beyond the practices of other states, support for the use of checklists and for positive models isreflected in expert testimony to the Probate Conservatorship Task Force47 and in the TaskForce’s 85 recommendations for reforming the conservatorship system.48 The Uniform ProbateCode, a statute adopted by some states that attempts to standardize probate law throughout thecountry, also encourages the tailoring of conservator powers: “The Court must specify thepowers granted to the guardian and the limits on the incapacitated person’s rights. The Act’semphasis on less restrictive alternatives, a high evidentiary standard and the use of limitedguardianship is consistent with the Act’s philosophy that a guardian should be appointed onlywhen necessary, only for as long as necessary, and with only those powers as are necessary.”49

Potential pitfalls and costsHaving explained the reasons for our recommendation, we now address potential pitfalls. Whereappropriate, we provide cost estimates.

1. The checklist may degrade care for some conservatees.2. The checklist creates extra work for courts and judicial officers.

45 Schum, David A. and Martin, Anne W. “Formal and Empirical Research on Cascaded Inference inJurisprudence.” Law and Society Review 17.1 (1981): 105-152.46 Gawande, Atul. “The Checklist.” The New Yorker 10 Dec. 2007: 86.47 Naomi Karp of the AARP Public Policy Institute has suggested using a checklist on orders establishing temporaryconservatorships. Testimony of Naomi Karp, AARP Public Policy Institute. Judicial Council of California ProbateConservatorship Task Force. 24 Mar. 2006< www.courtinfo.ca.gov/jc/tflists/documents/karp.pdf>48 Specifically, the Task Force suggests that court investigators provide recommendations specifying which powersshould be granted to conservators under Probate Code sections 2351 and 2591.49 Uniform Probate Code (Last Amended or Revised in 2008). National Conference Of Commissioners On UniformState Laws. Comment to Section 5-311.



3. The checklist creates extra burden for conservators.4. The checklist may raise expenses for conservatees.

The checklist may degrade care for some conservatees

Several practitioners we interviewed objected to the idea of specifying conservator powers. Theyargued that the court may not know at the time of the hearing what powers are needed for thecare of the conservatee, and that limitations restrict flexibility of care.

While acknowledging this concern, we note again the need to safeguard the civil liberties ofconservatees against unnecessary restrictions. We assert that petitioners should be able toprovide convincing arguments and a clear picture of what authority they need. The exercise ofcompleting the checklist may even assist some conservators in planning for the best care for theconservatee. We further note that our recommendation in no way prevents courts from grantingbroad powers to conservators when merited. Courts will still be guided in their decisions by courtinvestigators’ reports, which must be filed within two days of establishing a temporaryconservatorship and again prior to establishing a permanent conservatorship.

The checklist creates extra work for courts and judicial officers

The checklist should not add significant burden for courts and judicial officers. The JudicialCouncil of California estimates that 80 percent of petitions for conservatorship concern simple,uncontested cases with small estates. For such cases, especially when the conservatee is largelyincapacitated, the checklist will not impede the broad conferral of powers. When the conservateehas limited capacity or contests the conservatorship, the checklist may rightly trigger additionalconsideration by the judicial officer. However, for these non-simple cases, conservators wouldbe expected to apply only for those powers needed, reducing the burden for courts.

We estimate the annual added costs to courts to be $273,208 dollars. This estimate is based onfigures used by the Judicial Council of California to calculate costs imposed by the 2006Omnibus Conservatorship and Guardianship Reform Act. Our estimate includes:

Hearings that may be required if conservators return to request additional powers Time required to fill out checklists Salaries of court staff

Two assumptions in particular may limit the accuracy of our estimate. First, for simplicity, weassign equal costs for hearings pertaining to temporary and permanent conservatorships. Thisassumption may inflate our estimate, since temporary conservatorships are sometimes heard bystaff attorneys rather in full court. Second, it is not clear that additional judges would be neededas a result of our recommendation. Thus, in keeping with the practice of Judicial Council, wehave not included judge time. As such, our figure may be considered a lower-bound estimate. Adetailed version can be found in Appendix A.

The checklist creates extra burden for conservators

Public guardians, non-professional conservators and professional fiduciaries play an importantsocial role in safeguarding vulnerable elders. For this reason, we seek to minimize disincentivesfor responsible conservators to continue participating in the conservatorship system.



Our recommendation asks conservators to choose from a checklist of powers and to briefly writewhy each power is required for care of the conservatee. We estimate an additional 30-60 minuteswould be needed per petition. Proposed conservators are already required to list supporting factsas to why conservatorship is needed to care for the conservatee. It should not requiresignificantly more effort to explain which powers are needed and why.

Conservators may also need to return to court if they request additional powers. Assuming thechecklists for person and estate include approximately eight powers each, we estimate threeadditional hearings may be needed over the lifetime of the conservatee in non-simple cases.Given the gravity of conservatorship, we believe this to be a reasonable added burden. Sinceconservators may bill conservatees, we quantify the estimated cost in the following sectionregarding added costs to conservatees.

The checklist may raise expenses for conservateesThis recommendation may raise expenses for conservatees, since extra court assessments,attorney fees and conservator fees are subtracted from the conservatee’s estate. For simple cases,we estimate this cost to be $275 dollars per conservatee’s lifetime. For more complex cases, weestimate the cost to range between $888 and $2,625 per conservatee’s lifetime. We believe thesecosts are justified to protect conservatees’ civil liberties. We have calculated these costs using anattorney’s fee of $250/per hour. If conservators fill out the checklist themselves, the costs may belower. A detailed version of our estimate can be found in Appendix A.

ImplementationThe Probate Conservatorship Task Force has recommended that California require courts tospecify the powers granted to temporary conservators. The Probate and Mental Health AdvisoryCommittee (PMHAC) is studying the issue to determine if legislation is required or if such arecommendation can be implemented through rule of court or form changes. However, ProbateCode section 1001 states “The Judicial Council may prescribe the form of the applications,notices, orders, and other documents required by [the Probate] code,” suggesting a checklist maybe implemented without new legislation.50 Regardless, further input should be solicited fromattorneys, conservators and judicial officers to finalize the delineation of powers on the checklistand to ensure the revised forms are easy to use.

Conclusion

SummaryAs mentioned in our introduction, we sought to achieve three goals through our research andanalysis:

An examination of the effect, if any, of conservatorship reform laws passed in 2006 bythe California Legislature.

An empirical data-gathering effort designed to investigate trends within theconservatorship system.

Policy recommendations for further improvements based on our findings.

50 Prob. § 1001 (b)



We began by summarizing the principal provisions of the 2006 Omnibus Conservatorship andGuardianship Reform Act. These include licensing requirements for professional fiduciaries,expanded duties for court investigators and new educational requirements for many actors withinthe system. To date, the Act has not been funded, resulting in incomplete implementation. Forthis reason, the full potential impact of these reforms is difficult to assess.

To measure some of this impact, we chose 2007 as the time frame for our case file review. Weused statistical software to randomly select sixty cases from all conservatorship petitions filed inSan Francisco County in that year. Among other findings, we concluded that petitions forconservatorships were rarely denied, that proposed conservatees were actually more likely to beconserved when represented by an attorney, and that powers granted to conservators were rarelylimited.

Our data collection, coupled with qualitative research, led us to focus on three distinct problems:

1. California lacks an adequate information system for oversight of conservatorships.2. The current probate procedure does not sufficiently protect due process rights.3. California’s process places insufficient emphasis on less-restrictive forms of

conservatorship.

We propose one recommendation for each of the above problems. To create an adequateinformation system, we recommend a web-based filing process for all conservatorship-relateddocuments. To protect due process rights, we recommend that a mandatory defense report befiled by court-appointed attorneys for proposed conservatees. Finally, to emphasize less-restrictive forms of conservatorship, we recommend a checklist of powers be added to petitionand order forms.

Evaluative criteriaIn advancing our recommendations, we bear in mind the following evaluative criteria:

1. Maximize cost-effectiveness.2. Minimize cost to conservatees.3. Maximize probability that each conservatorship is the least-restrictive possible means of

caring for the conservatee.4. Maximize due legal process for proposed conservatees.5. Minimize disincentives for responsible conservators.



The following table summarizes how each recommendation fares in terms of our evaluativecriteria:

Web Filing System Attorney Report Checklist of Powers1. Max. cost-effectiveness

Good Good Fair to Good

2. Min. cost toconservatees

Good Good Good

3. Max. prob. of leastrestrictive means

Neutral Good Good

4. Max. due processfor conservatees

Neutral Good Neutral

5. Min. disincentivesfor conservators

Good Neutral Fair

Criteria: Web-based filing system

We estimate the creation of a web-based system for all necessary conservatorship filings in onecounty would cost $197,000 dollars for 10 years. However, once created, the system would berelatively inexpensive to expand to other counties. The current lack of data on conservatorshipsis a serious impediment to oversight efforts and attempts to improve policy. We feel the benefitsof increased information make this recommendation highly cost-effective. We rate it “Good”under Criterion 1.

This recommendation adds no direct costs for conservatees. Therefore, we rate it “Good” underCriterion 2.

This recommendation does not directly affect the likelihood that conservatorships will be theleast restrictive means of caring for conservatees. It also does not directly improve due legalprocess. Therefore, we rate it “Neutral” for Criteria 3 and 4.

This recommendation is unlikely to create disincentives for responsible conservators, and mayeven streamline the petitioning process. We rate it “Good” under Criterion 5.

Criteria: attorney defense report

By affecting the incentives of court-appointed attorneys, this recommendation would do much tosafeguard due process rights of conservatees at little added cost to courts. We rate it “Good”under Criterion 1.

Conservatees will bear the brunt of added attorney costs. We estimate these costs to be minimal,however. If a standard form is used, we estimate each report would require between 45 and 60minutes, resulting in attorney costs between $188 and $250 dollars per conservatee. Therefore,we rate this recommendation “Good” under Criterion 2.

This recommendation would increase incentives for attorneys to seek the least restrictivealternative means of caring for conservatees. The recommendation is also expressly designed tomaximize due process. We rate it “Good” under Criteria 3 and 4.

This recommendation should not directly create disincentives for conservators. We rate it“Neutral” under Criterion 5.



Criteria: checklist of powers

We estimate adding a checklist of powers to conservatorship forms would cost California’scourts $273,208 per year. Given the importance of ensuring that conservatorship is always theleast restrictive means of caring for the conservatee, we believe this cost to be highly reasonable.However, because it is a lower-bound estimate, we rate this recommendation only “Fair toGood” under Criterion 1.

We believe this recommendation will be highly effective in emphasizing less restrictive forms ofconservatorships when appropriate. The lifetime cost to conservatees, ranging from $275 to$2,625 dollars, is reasonable given the added protections to civil liberties. For these reasons werate this recommendation “Good” under Criteria 2 and 3.

This recommendation does not affect due process for conservatees. We rate it “Neutral” underCriterion 4.

This recommendation creates minor disincentives for conservators, since some may need toreturn to court to request additional powers. However, we estimate the number of additional tripsto be low, at three over the course of the conservatee’s lifetime for complex cases. Furthermore,in many cases the costs of the conservator’s time may be billed to the conservatee. For thesereasons, we rate this recommendation “Fair” under Criterion 5.

ConclusionThe Omnibus Conservatorship and Guardianship Reform Act of 2006 contains many worthwhilepolicy objectives. Unfortunately, the state’s failure to fund the Act has hobbled implementation.Many practitioners we interviewed expressed the opinion that the courts had been strained by thenew mandates in the absence of additional funding.

Regardless of the Act’s implementation status, we feel it does not go far enough in protecting therights of conservatees. Because of the current financial crisis, we have recommended solutionsthat do much to safeguard these rights at relatively low cost. An additional benefit is that ourrecommendations are unlikely to require additional legislation.

Conservatorship issues are only likely to grow in importance as California’s population ages.The number of Californians aged over 85 is expected to increase by 72 percent from 2010 to2030. Over the same period, the number of Californians over 65 is expected to increase by 88percent.51 Unfortunately, longevity does not always spell self-sufficiency. We encourage effortsto increase public awareness about the importance of old-age planning, including the use ofadvance care directives and estate planning. Such foresight may avert the need forconservatorship in some cases. However, a percentage of the steadily growing elderly populationis still likely to require conservatorship, whether administered through friends and family,professional fiduciaries, or the public guardian.

Vice-President Hubert Humphrey once said “the moral test of government is how thatgovernment treats those who are in the dawn of life, the children; those who are in the twilight oflife, the elderly; those who are in the shadows of life; the sick, the needy and the handicapped.”

51 U.S. Administration on Aging<http://www.aoa.gov/AoARoot/Aging_Statistics/future_growth/future_growth.aspx>



Almost by definition, proposed conservatees are among the most vulnerable members of oursociety. Continued attention must be paid to their rights and well-being. We submit our analysisin the hope of improving the welfare of conservatees and proposed conservatees throughout thestate of California.



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Starr, June and Lawrence Friedman. “Statutory Reform and the Incompetent Elderly; 17PoLAR 65 (1994) Political and Legal Anthropology Review.

Steinhagen, Daniel J. Attorney and past president of Minnesota Association for Guardianshipand Conservatorship (MAGiC). Phone interview. 13 Apr 2009.

Testimony of Naomi Karp, AARP Public Policy Institute. Judicial Council of CaliforniaProbate Conservatorship Task Force. 24 Mar. 2006.

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York, Tricia M. Conservatorship Proceedings and Due Process: Protecting the Elderly inTennessee; U. Mem. L. Rev. 538 (2005-2006)



Appendix A

Cost estimate for checklist of powers recommendationAssumptions:52

5,500 permanent conservatorship petitions are filed each year 2,200 temporary conservatorship petitions are filed each year 87 percent of permanent conservatorships are granted 80% of conservatorship cases are simple, with no contested proceedings or small estates.

15% are moderately complex, and 5% are complex, involving multiple proceedings,complicated accountings and the hearing of evidence.

Statewide average hourly rate, including benefits, is $62.31 for court reporters, $45.34 forcourtroom clerks, and $41.40 for secretaries

Average hourly rate for attorneys is $250

Cost to courts:

Cost of completing checklist for temporary and permanent conservatorship:

AnnualTemporaryand PermanentPetitions

AdditionalCourt TimeNeeded

Total Cost ofCourt Staff

Total Cost

Simple 6,160 0.05 hrs $149.05/hr $45,907ModeratelyComplex

1,155 0.15 hrs $149.05/hr $25,823

Complex 385 0.25 hrs $149.05/hr $14,346

Out of the 7,700 permanent and temporary conservatorship petitions filed annually, we estimatethat 6,160 (80%) are simple cases, 1,155 (15%) are moderately complex cases, and 385 (5%) arecomplex cases. The time required to fill out the checklist will vary depending on the complexityof the conservatorship case. We estimate it will take 3 minutes (0.5 hours) to fill out the checklistin simple cases, 9 minutes (0.15 hours) in moderately complex cases, and 15 minutes (0.25hours) in complex cases. The sum of court staff salaries for court reporters, courtroom clerks,and secretaries is $149.05 per hour. It is not clear that additional judges would be needed as aresult of our recommendation. Thus, in keeping with the practice of the Judicial Council, wehave not included judge time. The court staff cost is likely lower for temporary conservatorshiphearings; however, for simplicity, our estimate assumes that equal court staff resources are usedfor both temporary and permanent conservatorship hearings. Under these assumptions, the costto the court of filling out the initial checklist of powers during both temporary and permanentconservatorship hearings is $86,076.

52 Assumptions listed are taken from Judicial Council of California cost estimates except: percentage of permanentconservatorships granted (from our data collection) and cost of attorney (from anecdotal evidence).



Cost of additional hearings:

Of the 5,500 annual petitions for permanent conservatorship, we estimate that 87 percent, or4,785, will be granted. For simplicity, we assume that the percent of petitions granted is constantacross cases of different complexities. We estimate that zero additional hearings will be neededfor simple cases, 1.5 will be needed for moderately complex cases, and 3 will be needed forcomplex cases. For those additional hearings, we estimate that the hearings will last 30 minutes(0.5 hours) for moderately complex cases and one hour for complex cases. The total cost to thecourt for additional hearings is $187,132.

Total cost to court:

Cost of initialchecklist

Cost of additionalhearings

Total Cost to Courts

Simple $45,907 $0 $45,907Moderately Complex $25,823 $80,263 $106,086Complex $14,346 $106,869 $121,215Total $86,076 $187,132 $273,208

Cost to conservatees:

Completion of checklist on petitions for temporary and permanentconservatorships:

AnnualTemporaryand PermanentPetitions

Time Neededto Fill outChecklist

AdditionalCourt TimeNeeded

Cost ofAttorney

Total Cost

Simple 6,160 0.5 hrs 0.05 hrs $250/hr $847,000ModeratelyComplex

1,155 0.5 hrs 0.15 hrs $250/hr $187,688

Complex 385 0.5 hrs 0.25 hrs $250/hr $72,188

Implementing the checklist recommendation will increase costs to conservatees, since they willpay for additional attorney time. The initial temporary and permanent conservatorship courthearings will last longer and the attorney will spend additional time filling out the petitions fortemporary and permanent conservatorships. We estimate that attorneys will charge an additional33 minutes (0.55 hours) for simple cases, 39 minutes (0.65 hours) for moderately complex cases,and 45 minutes (0.75 hours) for complex cases. Given a $250 per hour wage rate, we estimatethat the initial checklist will cost conservatees $1,106,876.

AnnualPermanentPetitionsGranted

AdditionalCourtHearings

Court TimePerHearing

Total Costof CourtStaff

Total Cost

Simple 3,828 0 N/A $149.05/hr $0ModeratelyComplex

718 1.5 0.5 hrs $149.05/hr $80,263

Complex 239 3 1 hr $149.05/hr $106,869



Cost of additional hearings:

AnnualPermanentPetitionsGranted

AdditionalCourtHearings

CourtTimePerHearing

TimeNeeded toPrepareforHearing

TotalAttorneyTime

Cost ofAttorney

TotalCost

Simple 3,828 0 N/A N/A N/A $250/hr $0ModeratelyComplex

718 1.5 0.5 hrs 1 hr 2.25 hrs $250/hr $403,875

Complex 239 3 1 hr 2 hrs 9 hrs $250/hr $537,750

As in the cost estimate for the courts, we assume that simple cases will require no additionalhearings, moderately complex cases will require two, and complex cases will require three. Weassume that attorney preparation time required for these hearings will vary by complexity of thecase. We estimate that moderately complex cases will require an hour of attorney preparationand complex cases will require two hours. Additional court hearings are estimated to cost anadditional $941,625 across all conservatees.

Total cost to conservatee:

Cost of initialchecklist

Cost ofadditionalhearings

Total Cost toConservatees

Average Cost toConservatee*

Simple $847,000 $0 $847,000 $275Moderately Complex $187,688 $403,875 $591,563 $888Complex $72,188 $537,750 $609,938 $2,625Total $1,106,876 $941,625 $2,048,501 $484*Averages are calculated assuming both a temporary and permanent conservatorship weregranted.